Thapa (Migration)

[2019] AATA 6467

Thapa (Migration) [2019] AATA 6467 (20 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Saugat Thapa
Mrs Shriju Aryal

CASE NUMBER:  1907721

HOME AFFAIRS REFERENCE(S):          BCC2018/5575132

MEMBER:Catherine Carney-Orsborn

DATE:20 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

Statement made on 20 November 2019 at 3:44pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – nominated skilled occupation of Accountant –first skills assessment was no longer valid at the time of invitation – skills assessment was not available at the time of invitation – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, 2.26, Schedule 2, cl 189.222
Education Services for Overseas Students Act 2000

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 March 2019 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visas under s.65 of the Migration Act 1958 (the Act). This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant (the applicant) was invited to apply for the visa on 11 December 2018 and applied for the visa on 11 December 2018 nominating the skilled occupation of Accountant (General).

3. The criteria for the grant of a Subclass 189 visa in the Points-tested stream are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. In the present case, the delegate refused to grant the visas because the applicant did not satisfy cl.189.222 because the skills assessment provided did not meet the criteria as set out in cl.189.222.

4. The applicants appeared before the Tribunal on 19 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bhatta.  

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the first named applicant satisfies the criteria in cl.189.222.

   Suitable Skills Assessment

8. Clause 189.222(1) requires that at the time of invitation to apply for the visa, the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. For visa applications where the invitation to apply was given on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, there are additional requirements relating to the currency of the assessment as at the time of invitation to apply for the visa.

9. ‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations (r.1.03). ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.1.03). An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation. The relevant instrument for these purposes is Legislative Instrument IMMI 18/051.

10. If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course: cl.189.222(2). ‘Registered course’ is defined to mean a course of education or training provided by an institution, body or person that is registered, under the Education Services for Overseas Students Act 2000, to provide the course to overseas students (r.1.03).

11. The applicant gave oral evidence at the hearing.  He said he had satisfied the requirement for a skills assessment and had undertaken two successful skills assessments.  The applicant provided detailed submissions and his friend appeared at the hearing and detailed those submissions.  The applicant provided those submissions in writing.

12. The Tribunal has considered all the submissions and evidence before it.

13. The applicant had two skills assessments, both of which found him suitable for his nominated skilled occupation of Accountant (General).  The first skills assessment was dated 21 September 2015.  The skills assessment had not specified a period during which the assessment was valid; therefore reg. 189.222(d) applied.  The date of invitation relevant to the subclause was 11 December 2018.  Unfortunately at the date of invitation more than three years had passed since the date of assessment. 

14. The applicant in submissions had stated that, as there was no date of validity on the skills assessment dated 21 September 2015, it was valid at the time of invitation. The Tribunal does not accept this as clause 189.222(d) applies as above and therefore the skills assessment does not satisfy the criteria.

15. The second skills assessment was dated 10 January 2019.  This skills assessment again found the applicant to be suitable for the nominated skilled occupation.  Unfortunately it was not available at the time of invitation being 11 December 2018.

16. In relation to this skills assessment the applicant made submissions that the approach taken in Waensila v MIAC (2015) FCCA and in Berenguel v MIAC [2010] HCA would apply so that the criterion in relation to the skills assessment could be met by an assessment made after the time of application.  Berenguel has not been applied in this context, and the skills assessment requirement for this subclause is “at time of invitation to apply”.

    At time of invitation to apply

17. Where the criteria require the applicant to have a suitable skills assessment at the time of the invitation to apply for the visa (Subclasses 189, 190 and 489), the relevant skills assessment must exist at the time of invitation.[1] The applicant need not have supplied the actual assessment at the time of visa application, as the requirements for making a valid visa application require only a declaration that their skills have been assessed as suitable by the relevant assessing authority.[2] However, they must supply evidence by the time of decision that the relevant skills assessment existed at the time of invitation to apply for the visa.

    [1] Clauses 189.212, 190.212, 489.222.

    [2] Items 1137(4) table item 4(c); 1138(4) table item 4(c) and 1230(4) table item 4(c) First Provisional visa stream of Sch 1 to the Regulations.

18. The Tribunal has considered all the circumstances.  The Tribunal accepts that the applicant has the skills assessments; however the Tribunal finds that the applicant does not meet the criteria in subclause 189.222 for the above reasons.  The first skills assessment was no longer valid at the time of invitation and the later skills assessment did not exist at the time of invitation.

19. Although the Tribunal is sympathetic to the applicant, the criteria do not allow for extenuating circumstances or a mistake by the Migration Agent.

20. On the basis of these findings, the applicant does not satisfy cl.189.222(1).

21. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 189 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

22. The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

    Catherine Carney-Orsborn
    Member